Clarifying the misconceptions of a jaundiced mind
I refer to a letter published in the Stabroek News of 30 March 2023 by Mr. GHK Lall, bearing the caption “Only Mr. Nandlall, not the AG and legal practitioner, knows the answers to these questions”.
In this letter, Mr. GHK Lall offered comparative legal luminance on two cases, in which I was involved. One, while I was in Opposition in which I appeared for Carvil Duncan, then Chairman of the Public Service Commission against the Attorney General, and the other, Paul Slowe, Chairman of the Police Service Commission et al against the Attorney General, where I appeared in person as the Attorney General. In both these cases, different Executive Presidents purported to suspend these two constitutional officeholders from their official functions. It is common ground that by virtue of the nature and purport of their constitutional functions and status, these officeholders enjoy security of tenure and can only be removed or suspended in accordance with a regime outlined in the Constitution.
Mr. GHK Lall drew heavily on the obvious similarities of the factual and legal circumstances from which these two cases arose, critically accentuating the contradictory legal postures which he perceived that I adopted in each of them. I conceive his quintessential objective was to underscore, what he perceived as, duplicitous conduct on my part. The irrefragable truth is that in the legal profession, many times, lawyers are indeed obliged to take positions in cases that are in fact, and in law, inconsistent with positions they may have adopted in other cases. This, I daresay, is a vocational freedom and an ethical latitude which inhere in the legal profession. But I hasten to say that I need not invoke this facility in this engagement, for the position that I took in the two cases are neither different nor contradictory. Indeed they were consistent: advocating for constitutional compliance.
Indeed, I will concede that the obvious similarities between the two cases can lead to the mirage of which I think Mr. Lall is a victim. However, when subjected to a juridical forensic examination, the legal issues are clinically disparate and different. I will now endeavour to illuminate the relevant jurisprudential differences in the two cases.
The procedural regime for the suspension/ removal of the Chairman of the Police Service Commission and the Public Service Commission is identical and expressed in Article 225 of the Constitution.
I outline hereunder the steps set out in Article 225, which are to be followed when a member of a Constitutional Commission is to be suspended and/or removed from office:
(i) The Prime Minister is authorised to ‘raise the question of removal of any member of the Commission on certain grounds including misbehaviour [Article 225 (2)];
(ii) It is the Prime Minister who must advise the President that the question of removal ought to be investigated, whereupon the President must act in accordance with that advice and appoint a Tribunal. In appointing that Tribunal, the President acts in accordance with the advice of the Judicial Service Commission (JSC) [225 (4)];
(iii) That Tribunal shall enquire into the matter and recommend to the President whether the officer ought to be removed.
(iv) Removal is not suspension. Suspension vests exclusively in the President acting on the advice of the Prime Minister. Article 225 (6) is excruciatingly clear on this crucial issue: “If the question of removing the officer from office has been referred to a tribunal under this article, the President, acting in accordance with the advice of the prescribed authority, may suspend the officer from performing the functions of his or her office…”.
(v) Therefore, it is the Prime Minister who must make that exclusive and substantive determination whether to advise the President to suspend a Commission member. The power of the Prime Minister to render this advice is not dependent upon the establishment of a Tribunal established by Article
225 (4). The Tribunal’s duty is separate from the Prime Minister’s. Its duty concerns removal from office.
(vi) Additionally, when the Prime Minister advises the President on the suspension of a member of a Commission, the President “may suspend”. Here the President, himself, is vested with a discretionary power to make a determination whether or not to suspend a member. Hence the use of the word “may” as opposed to “shall” [see Article 225 (6) above]. Apart from this advice, there is no requirement that the President should consult with or act upon the advice of any other entity. Certainly, the President’s decision to suspend is not at all influenced in any manner whatsoever by the Tribunal to be established in accordance with Article 225 (4). In short, for the purpose of suspension, the establishment of this Tribunal is simply a procedural step in the chronology of the process. Its functional responsibility relates exclusively to the issue of “removal from office”, not suspension. To conclude, the President’s substantive power to suspend is unaffected by the presence or absence of the Tribunal whose establishment is but part of a procedural chronology vis-à-vis suspension.
Significantly, because of the security of tenure with which these officers are endowed, the law imposes procedural fairness and natural justice to be observed when the provisions of Article 225 are activated. Specifically, the Prime Minister is enjoined to accord a person the right to be heard, as a condition precedent, before advising the President that the question of his removal ought to be investigated. This procedural step is now concretized into a substantive right to natural justice and procedural fairness. This fundamental issue was conclusively settled by the Guyana Court of Appeal in
Barnwell v AG of Guyana (1993) 49 WIR and by the Privy Council in Rees v Crane [1994] 1 AC 173. Both of these cases involved the removal of High Court judges from office. The security of tenure which judges enjoy is similar to those enjoyed by members of the constitutional commissions. The constitutional regime for removal and suspension from office is likewise similar. In Barnwell’s case, the Judge was not afforded a hearing before the advice was tendered to the President that the question of his removal ought to be investigated. In fact, the Constitution is silent on this specific facility. In expatiating on this issue, the Court of Appeal adumbrated that a decision maker is “required to apply the rules of natural justice and procedural fairness to its deliberations; it had acted in breach of its duty to act fairly and in breach of the rules of natural justice when it made its representations to the President; and a contravention of the rules of natural justice rendered the decision void even if it could be shown that without such contravention there would have been an adverse result.”
In Paul Slowe’s case, there was undisputed compliance with this specific fundamental requirement of procedural fairness and natural justice. Prime Minister Mark Phillips wrote, offering the impugned persons, an opportunity to show cause. They responded in writing. The Prime Minister was unpersuaded. He then advised the President that the question of their removal ought to be investigated.
In contradistinction, in Duncan’s case, the complaint was that this very substantive right to natural justice was not extended to Duncan by Prime Minster Moses Nagamootoo. Although a letter from the Prime Minister offering Duncan was ex post facto, produced, there was no evidence that it was communicated to, or received by Duncan. Duncan robustly contended that he never received such letter. In accordance with the principles enunciated in the cases of Barnwell and Rees above, in Duncan’s case, I contended that the advice of the Prime Minister to the President and indeed, every step which ensued thereafter, was in breach of the rules of natural justice and procedural fairness rendering them all null, void and of no effect. I have every confidence that I would have succeeded had the then Attorney General not threatened the Hearing Judge in open Court causing him to abort the trial.
In Paul Slowe’s case, the crucial issue was that there was no Tribunal appointed under Article 225 (4). As I articulated earlier, the sole function of this Tribunal is to address the issue of removal from office. Neither Paul Slowe nor his colleagues were removed from office by the President. In fact, the question of removal did not arise in the case. The reason for the non-appointment of the Tribunal was because there was no Judicial Service Commission for the President to consult in order for such a Tribunal to be appointed. But again, this Tribunal bears no functional responsibilities relating to suspension. Suspension is an exclusive Presidential power exercisable upon the advice of the Prime Minister and with an element of deliberate judgment on the part of the President. The President received the appropriate advice from the Prime Minister and in exercising his deliberate judgment made a decision to suspend in the interest of the rule of law, national security and for the public good. I see nothing wrong with this decision.
I am compelled to point out that Slowe’s case was not a case where there was a Judicial Service Commission in place which the President ignored in breach of Article 225 (4). There was no JSC in place. Therefore, it was not a case of constitutional non-compliance on the part of the President but a case of impossibility to comply.
The Honourable Chief Justice Roxane George confronted this conundrum in the recent decision of Jones v. AG & Clifton Hicken FDA 705 of 2022, in which the President was constitutionally required to consult with the Leader of the Opposition to appoint an acting Commissioner of Police in compliance with Article 211 of the Constitution. At the material time, there was no Leader of the Opposition with whom to consult. The President made the appointment. It was alleged that the President breached Article 211. On this issue, the Chief Justice ruled:
“There could be no disregard of, and thereby a breach of the requirement for meaningful consultation when it was impossible to so engage. The applicant therefore is relying on an impossibility to ground a claim of unconstitutionality. On this basis alone, the application is vexatious and an abuse of the process of the court.”
All these arguments were adeptly proffered to the learned Hearing Judge. His Honour’s attention was drawn to the Judgment of Chief Justice George in the Jones v AG et al. His Honour was passionately implored to travel the juridical path traversed by the learned Chief Justice. These pleas fell on deaf ears. Hence the intent to appeal.
I hope I have been able to clarify the misconceptions which have jaundiced the mind of Mr. Lall on this matter. I thank him for offering me the opportunity to elucidate this matter for the wider public.
Yours faithfully,
Hon. Mohabir Anil Nandlall SC, MP
Attorney General and Minister of Legal Affairs